Lau Ping and Others v. Leung Choi Ying and Another

HCA001378/1974

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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Coram: Mr. Registrar Stapp in Chambers.

Date of Judgment: 11th May 1977.

Mr. J. Ip of John Ip & Co. for all three plaintiffs.

Mr. H.A. Hoosenally of H.A. Hoosenally & Co. for both defendants.

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DECISION

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1. Interlocutory judgment was entered against the two defendants on 2nd April, 1976, resulting in this assessment. On 8th June, 1971, the three plaintiffs were passengers on board a private car, owned by the 1st defendant and driven by the 2nd defendant. Whilst the car was travelling along Lam Kam Road in the direction of Sek Kong, it went out of control, skidded across the road and eventually collided with a tree. The three plaintiffs were subsequently admitted to Queen Elizabeth Hospital on the same day for treatment of the injuries which they had sustained in the accident.

2. I now assess damages in respect of each of them.

1st Plaintiff

3. He was aged 28 at the date of the accident. He suffered a fractured left patella, a fractured right femur, together with a slight laceration to the forehead and abrasions. The femur was treated conservatively and a partial patellectomy was carried out on his left patella on 23rd July, 1971. He was transferred to Kowloon Hospital for convalescence on 7th October, 1971, and he left against medical advice on 12th October, 1971. He should have stayed another three to four weeks for physiotherapy. He was readmitted twice for six days each in December, 1971 and April, 1973, because of recurrent pain and effusion of his left knee caused by osteo-arthritis following the fracture. Finally he was admitted for five days in August, 1974, for removal of broken wires.

4. When examined by a Medical Board at Queen Elizabeth Hospital in June, 1976, he was found to be walking well with no limping, and to have a full range of left knee movements. However, there was wasting of the left thigh muscles with weakness of left knee movements and residual pain in the right thigh. The Board were of the opinion that he had a 5% disability. Dr. Chow Yat Ngok was in the Orthopaedic Unit of Queen Elizabeth Hospital which treated the 1st plaintiff. In cross-examination he stated that if the 1st plaintiff had not discharged himself against advice on 12th October, 1971, he might have gained stronger movement of the left knee. For that same reason, Dr. Chow was of the opinion that the episodes of pain and effusion of the left knee would not have occurred and that this contributed to the residual wasting of the left thigh muscles.

Special Damages

5. He was unable to resume working as a woollen garment worker for seven months, and suffered a loss of earnings of $1,000 per month and I allow the sum of $7,000 as claimed.

6. In addition I allow the following items:-

7. There is no medical evidence to support the claim for nourishing food and I disallow it.

8. Special damages therefore total $7,600.

General Damages

9. The 1st plaintiff suffered quite painful injuries involving protracted treatment and convalescence with some residual disability. My attention was drawn to the case of Chan Yum-wah v. Wai Chung & anor. (H.K.L.J. Vol. 4, No. 2, P.207).

10. When he resumed work at the same factory as before he found that he could not stand all day at the knitting machines and therefore had to change to a new section i.e. checking clothes, where he could sit down. This meant a drop in salary from $1,000 per month down to $750 per month; and apparently this is still the situation. However, the Medical Board in 1976 assessed his residual diminution of working capacity at only 5%, which I accept as a more accurate guide as to what his diminished earnings should have been if he'd sought maximum employment.

11. I assess general damages in the sum of $22,000 of which $10,000 relates to pain and suffering and loss of amenities and $12,000 relates to diminished loss of earnings after his return to work. From this sum, however, should be deducted twenty-five percent, to allow for the irresponsible action of the 1st plaintiff in leaving hospital against medical advice, thus exacerbating his injuries and increasing residual disability. This leaves a sum of $16,500 for general damages to the 1st plaintiff.

2nd Plaintiff

12. He was aged 24 at the date of the accident. On admission to hospital he was found to have large haematoma over both eyes, and lacerations.

13. An x-ray of the skull showed extensive fractures involving the frontal bone, frontal sinuses, the nasal bone and the roof of the right maxillary antrum and right zygoma and zygomatic arch. There was leakage of cerebral spinal fluid from the nose for ten days.

14. He was also found to have a right full-length corneal laceration with prolapsed iris. The corneal laceration was repaired the same day.

15. However right endophthalmitis was later revealed while the patient was in hospital and evisceration of the right eye was performed on 7th July, 1971 and he was discharged six days later. He suffered complete loss of the right eye, involving thirty per centvisual disability.

16. The consultant Neurosurgeon Dr. Edmund Cheung testified as to the effects of the injuries. He referred to facial disfigurement involving flattening of the bridge of the nose and right cheek bone. (I must say that this unfortunate appearance was most apparent when I saw him in Chambers).

17. As a result of the fractures to the front of the skull, meningitis remains a possibility, although not very likely after 6 years. Some degree of brain damage would normally result from such a severe blow, although Dr. Cheung did not assess this aspect and agreed that he appears normal. There was also a complete and permanent loss of the sense of smell. In addition, there has been a displacement of the jaw which results in difficulty with chewing.

18. The 2nd plaintiff gave evidence which I found to be admirably frank, uncoloured, and straightforward, despite a most depressing experience following the accident.

19. He testified that since losing his right eye, his left eye tires after much use. He uses a glass eye which sometimes causes discomfort to the socket. He also suffers from headaches which will occur if he has to concentrate for any length of time. His memory was better before the accident. As his jaws now meet unevenly, he has the problem of having to masticate food on one side of the mouth. He rarely takes part in hikes and picnics, which he used to enjoy, but still goes swimming sometimes. He is single and lives with his family.

20. At the time of the accident, he was employed as an electro-plating worker at the Kwok Wah Electro-plating Company, and had been there for several years. He was earning approximately $1,200 per month.

21. That work entails some skill in using an electrically operated machine to buff the items which he later electro-plated. He went back to the factory after the accident and tried to do this work again, but found that his one eye was not up to it, so far as necessary visual focus for fine handling and machine operation were concerned. His health was poor following the accident, and he therefore did not resume working until one year thereafter, this time at Kay Shun Factory as an apprentice, learning the dye-printing of textiles. He earned $500 per month from June 1971 until the beginning of 1976, when he transferred to a sister factory Kay Cheong Factory, where he has been earning $700 per month since starting there. He has improved his skill at the job, so that he hopes to have his monthly wage increased to $1,000 per month in the very near future. Although some workers earn up to $1,300 per month he does not expect to go beyond $1,000 per month, having regard to his physical limitations now.

Special Damages

22. He was unable to resume working at his former job and lost a year's earnings at $1,200 per month, and I allow 13 months totalling $15,600 in respect of that period. For the next period from June 1971 until the beginning of 1976 he was earning $500 per month and I allow the difference of $700 per month (compared with his former income) for the period of 59 months, (again allowing for Chinese New Years) amounting to $41,300. Since the beginning of 1976 he has been earning $700 per month, and I allow the difference of $500 per month for the period of 17 months until now amounting to $8,500.

23. The total allowed, therefore, in respect of lost earnings to date amounts to $65,400.

24. In addition I allow the following items:-

25. I disallow the claim for nourishing food as there was no medical evidence in support thereof. Special damages, therefore, amount to $65,950.

General Damages

26. The 2nd plaintiff underwent a most traumatic and painful experience which involved the loss of an eye, severe facial disfigurement, together with loss of his sense of smell and other unpleasant side-effects, which have changed his life considerably. He has taken courageous steps to rehabilitate himself in an entirely new occupation. This involved a long period of apprenticeship which he has served, to achieve a reasonable degree of success, consistent with his physical handicap.

27. So far as loss of future earnings are concerned, he soon expects to be receiving a monthly income of $1,000 per month, which is $200 per month less than what he was earning in his previous occupation, at the time of the accident.

28. Having regard to his age and all the surrounding circumstances I think it would be reasonable to apply a multiplier of 14 to that difference as a multiplicand, which also takes into account the payment of a lump sum and the usual vicissitudes of life. This amounts to $36,400 (13 x 200 x 14).

29. My attention was drawn to the cases of Yan Wing-kit v. Mak kin-tang & anr.; Lau Chau-wing v. Tam Miu-lin; Lam Kam-wah v. Fung Wai-tung & anr. (all referred to H.K.L.J. Vol. 5, No. 2 pp. 257, 258).

30. For pain and suffering and loss of amenities I assess general damages in the sum of $60,000.

31. General damages therefore total $96,400.

3rd Plaintiff

32. He was aged 22 at the date of the accident. He suffered abrasions of the nose, left knee and chest and a fractured femur of the right thigh. He left Queen Elizabeth Hospital on 10th June, 1971 against medical advice, after one day's treatment. He did not testify and I only have a brief, agreed medical report to guide me. However, it appears that there is no claim for permanent disability.

Special Damages

33. He was unable to resume factory working for one month, and suffered a loss of earnings of $1,000 which is agreed. There is also an agreed figure of $200 for damage to clothing.

34. Special damages are, therefore, assessed in a total sum of $1,200.

General Damages

35. My attention was drawn to the case of Yu Chuen v. Lam Hing (H.K.L.J. Vol. 4, No. 2, p.207).

36. In respect of pain and suffering I allow the sum of $3,000.

37. As agreed by Mr. Ip and Mr. Hoosenally, in each case, all damages will carry interest at the rate of 8% per annum from the date of service of the writ on 2nd June, 1975 until today.

38. The three plaintiffs are entitled to the costs of the assessment and the action.

39. Dated this 11th day of May, 1977.

Representation:

Mr. J. Ip of John Ip & Co. for all three plaintiffs.

Mr. H.A. Hoosenally of H.A. Hoosenally & Co. for both defendants.